[free-sklyarov] Re: Continuing the fight

[Seth Finkelstein]

On Sun, Dec 16, 2001 at 03:31:36AM -0500, Xcott Craver wrote:
> 	I'd like to suggest a different POV:  since Dmitry's going
> to testify for Elcomsoft anyways, I don't see how helpful his cooperation
> really is.  Rather, I think this agreement is just face-saving on the
> part of the gov't.  Rather than just dropping the charges, they're
> dismissing it in exchange for some token assistance that will amount to
> Dmitry stating what he'd say anyways:  that he wrote the program, and that
> it does circumvent an access-control mechanism.

	Although I'm not a lawyer, as I went through the agreement, it
appeared he basically had to admit guilt on all counts. It seemed like
the language of the agreement had him establishing each element of the
charges. I don't think that was he was planning to do that in the
first place. ... How can this be just face-saving on the part of the
government?

	I think maybe we did win a victory, but perhaps a much smaller
and different victory than one might imagine at first glance. What
happened here? Although I'd probably be a more popular fellow if I joined
a cheering chorus (okay, one cheer - yay!), I just can't buy that the
mighty power of progammerdom caused the government to drop the charges
in a face-saving measure. It'd be nice to believe that, but it's too
much, in my view.

	What might be the situation was a move of the case strategy from

1) Crucify Dmitry and Elcomsoft in the process of winning the DMCA case

	to

2) Let Dmitry off the hook in return for testimony to win the DMCA case

	That is, the victory was that the prosecutors may have been
convinced that overall, it was better to use him to help build the
DMCA case than to make him suffer personally.

	Again, there's nothing at all wrong with that outcome. It's
important to remember that a defense attorney's duty is get the
best deal for their client, not win political causes. But there
can be conflicts in outcome here.

	In sum: This was a victory for the treatment of Dmitry Sklyarov.
That's good. But that's not the same at all, in any sense, as a DMCA
victory. Those are very different, and shouldn't be confused. In fact,
this might just be a switch in the government and Adobe's DMCA strategy.

-- 
Seth Finkelstein  Consulting Programmer  sethf at sethf.com  http://sethf.com
http://www.nytimes.com/2001/07/19/technology/circuits/19HACK.html  
BESS's Secret LOOPHOLE: http://sethf.com/anticensorware/bess/loophole.php
BESS vs Google: http://sethf.com/anticensorware/bess/google.php